Tuesday, June 17, 2008

Off-topic: Boudmediene and the "sliding scale"

Plenty of people (for example, here) have plenty of interesting thoughts about Boumediene v. Bush. There's one aspect of the case, however, that has nagged at me ever since the detainee cases first started wending their way through the courts. And that is the argument over whether due process rights, and the writ of habeas corpus, extend to non-citizens held abroad - or, in the case of Guantanamo, "abroad."

I realize that this argument is based on the "sliding scale of rights" analysis found in Johnson v. Eisentrager, which states; "The alien, to whom the United States has been traditionally hospitable, has been accorded a generous and ascending scale of rights as he increases his identity with our society." The argument that constitutional rights stop at our shores is, therefore, not new to the Bush Administration.

It nevertheless strikes me as wrong as a matter of constitutional structure and text. Those who label themselves "federalists" should appreciate that "constitutional rights" are not merely grants of rights to individuals but limitations on the power of government. The Constitution defines the powers that government does and does not have. I see no reason, based on that arrangement and the text that describes it, to construe those powers as shorn of those limitations simply because they are exercised outside the country and against non-citizens. If the government lacks the power to detain people without certain procedural safeguards, it lacks that power. There are pragmatic arguments as to why this should not be the case, but I can't see how those arguments are tied to the Constitution. "No person" in the Fifth Amendment seems plain to me.

I appreciate, however, that there is a possible textual and historical argument with regard to the Suspension Clause. The clause speaks of "the writ of habeas corpus," clearly invoking the common law tradition associated with that writ. To the extent that the writ was, at common law, understood as extending only to the subjects of the Crown and/or to actions taken within the boundaries of the Realm, the Constitution may be read as incorporating similar limitations. But this argument, it appears, applies to the writ but not the Fifth Amendment Due Process Clause.

These are, of course, off-the-cuff comments on a subject I'm not at all versed in -- but then so is most of the discussion about the detainee cases.


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